C4C Warsaw event – May 2013

Copyright - In search of Flexibility

What do the limitations and exceptions (L&E) in the Copyright Directive mean and how much flexibility is allowed to Member States in implementing them and interpreting them into national law? This was the core question at the center of the ‘Copyright – In search of flexibility‘ debate co-organised on May 24th by C4C and the public interest organisations Nowoczesna Polska (Modern Poland Foundation) and Centrum Cyfrowe, with the support and in the beautiful setting of the ZachętaNational Gallery of Art, one of Poland’s most notable institutions for contemporary art situated in the centre of Warsaw.

The meeting started with a short introduction by Jaroslaw Lipszyc, President of Nowoczesna Polska, setting out how copyright has been shifting in an unintended direction over the past decades, before leaving the stage to the various panelists, with Alek Tarkowski, Director of Centrum Cyfrowe Projekt Polska, acting as moderator.

Hanna Wróblewska welcomed the audience in the wonderful setting of her Zacheta Gallery, pointing out that an art gallery is the place where creators and users meet, and that any debate around copyright should not ignore the fact that both are important.

Caroline De Cock, Coordinator for Copyright for Creativity (C4C) then briefly presented the C4C Coalition, highlighting some of its past, present and future challenges and the key principles of its Declaration.

Analysing the available flexibility in interpreting and implementing copyright rules

Professor Bernt Hugenholtz, from the Institute for Information Law of the University of Amsterdam (IViR), then took the floor to present ‘Flexible Copyright‘, or how the limitations and exemptions comprised in the 2001 Information Society Directive can be read in light of digital developments. Professor Hugenholtz pointed out that there’s copyright reform in the air in the EU, giving an overview of the various countries where discussions had been ongoing for some time (e.g. UK since 2006, the Netherlands, Ireland). The technological pace of change today is such that legislators cannot reasonably be expected to predicted what the future holds, which implies and increasing need for flexible, open and abstract norms. This need is amplified by the length of the legislative cycle due to the double layer of EU and national levels.

In his presentation, Professor Hugenholtz sets out a number of non-exhaustive areas where a flexible fit for purpose interpretation of copyright rules was is required, namely:

1 . User Generated Content : looking at the concrete example of remixing and spoofs, he explained how courts, notably in the Netherlands, struggled at defining if they fell under under either parody or the quotation exceptions. At wit’s end, a Dutch court ended up going outside the realm of copyright to rather look at freedom of expression.

2. Information location tools (search): there again, a certain number of existing exceptions may or may not apply, e.g. the transient copying exception when looking at caching or the quotation exception when looking at search results (especially image search – cf. Copiepresse v. Google in Belgium)

3. Digital classroom: as tools such as ppt, blackboard and e-boards become mainstream, it is worth noting that they are not always covered by educational exceptions.

4. Documentary film making: the inclusion of old films can be an issue due to either licensing or orphan works regimes, especially as documentaries are generally not covered by either the exceptions regarding media reporting nor those related to current event/news.

5. The ‘Unknown unknowns’: how will exceptions apply in the future. Looking at an example from 5 years ago, Shazam: you need to copy music to your smartphone or tablet for the Shazam application to identify it, yet one can wonder if that is allowed.

Having framed the need for more flexibility, Professor Hugenholtz then proceeded to analyse if the EU framework allows such flexibility in the implementation and interpretation of its norm. At first glance, the answers seems ‘No’, due to the fact that the Limitations and exceptions list is an exhaustive closed list, as stipulated under Recital 32. But on the other hand, the list is written loosely and in an open way and Recital 2 explicitely refers to a flexible approach, whereby the list should be seen as an enumeration of prototypes rather than precise exceptions. Flexibility can be read in the use of ‘such as’ in Art 5 (3) (d) of the Information Society Directive (which led to very divergent interpretation in Sweden -broad interpretation- and France – narrow and conservative). Expressions such as ‘incidental inclusion’ in Art 5 (3) (i) could be applied to User Generated Content whilst concepts such as ‘pastiche’ (art 5 (3) (k)) have no clear legal definition.

Professor Hugenholtz hence concluded that there is room if you look for it. But what kind of flexibilities could be achieved?

1. A general open norm such as fair use seems unrealistic but is not impossible even under the existing rules.

2. Flexibility can be created inside the circumscribed limitations and exemptions. This is notably the Dutch approach, which consists in stretching quotation right (art 15 Dutch Copyright Act)

3. Flexibility can also be created alongside circumscribed limitations and exemptions (e.g. see Wittem European Copyright Code art 5.5).

The point of view of publishers

Marzena Wojciechowska, lawyer at the Press Publishers Chamber, set out a quite different picture. For her, the debate about flexibility stems from the tension between the creative creator and the creative user, between copyright and freedom of speech. Those rights are important and the compromise should be balanced. In a multi-stakeholder dialogue started last year, a few months were spent discussing how to find a solution combining these different interests. No concrete result has been achieved as no one is sure how to change the law and no one is happy, neither creators nor users. Ms Wojciechowska ironically wondered if, maybe when no none is happy that means there’s a balance?

She also pointed out that she considered that there is a need for a specialised IP copyright court, that can understand the different rights at stake an that, in her view, the Polish implementation of the Copyright Directive is too imprecise – making no distinction between analogue and digital content. Classical copyright was based on hard copy and about a created item and how it was disseminated. In a digital world, the reality has shifted: How to define a copy? Should we talk about ‘Hard digital copy’?

Ms Wojciechowska also admitted that grasping the impact of the Internet for publishers was still difficult. For example, it is still difficult to understand who is benefiting from works on the Internet, notably when taking into consideration g advertising.

Ms Wojciechowska also expressed her support to the Licence4Europe process, considering that it demonstrates that the European Commission shares the analysis and conclusions of Polish publishers.

She finally concluded by pointing out that creation means money. Whilst the Internet is good as it allows creators to show their work, the money they make has to come from every copy sold.

Copyright implementation: a monster consuming its own child?

Michal Kwiatkowski, composer and musician, then took the floor to share his practical experience, as a creator, with copyright. He had met his music band and publisher yesterday to discuss album plans and the publisher said the plan was easy: just write two hits and we’re fine. Of course, there is no recipe for a hit. Creativity is mysterious and difficult to define, certainly in legal terms. Not to mention regulating it in a fair way. Moreover, mosts artists do not know anything about copyright, nor do they truly care.

Mr Kwiatkowski did not agree however with Jaroslaw Lipszyc who stated that the history of copyright was a history of depriving users of rights.The origin of copyright is actually to be found in the UK, where publishers were copying creations without paying the creators and UK lawmakers dealt with this problem by ensuring creators were remunerated.

The problem is that the copyright monster is now consuming it’s own child. Publishers very often exploit artists and copyright is complex, sometimes leading to absurd results. A good illustration of this absurdity is the ‘Bittersweet Symphony’, written by The Verve taking fragments from the Rolling Stones, but for which Jagger and Richards were attributed authorship of the song, even though they had not worked on it at all. When such situation occur, something is very very wrong.

For Mr Kwiatkowski, wen looking at where his works appear, he makes a difference between commercial and non-commercial use: if a pastor asks to show one of his films in his church for free, he does not consider that any payment should occur to him. However if one of his works appears on a portal that makes money out of it either through a paywall or advertising, then not paying the author is unfair.

Publishers are the biggest enemies of fair use because they fear their role will diminish. This is wrong because artists need publishers. Even if production is less important in the future as it becomes fully digital, publishers will still have a role, albeit a less important and hence less profitable one.

The point of view of entrepreneurs

Katarzyna Lasota-Heller, lawyer at MIH but speaking in her personal capacity, shared the point of view of entrepreneurs, as flexibility in copyright is very important to them, especially as the digital economy develops. There is a need to deal with copyright on the Internet. There is a need for legal certainty for online companies, and for open and flexible norms that can cope with the pace of technological change. Copyright must be used as a tool to boost entrepreneurship, not as an inhibitor of innovation.

Ms Lasota-Heller notably presented the example of an artist friend that paints still images of films and sells them online. Although he wants to ensure that he is not in breach with copyright, he has found it impossible to clear the rights as no company or association seems competent to do so. As a result, he is fearful of growing his online business in case it is suddenly deemed illegal.

In such a scenario, copyright – and more generally the system of Intellectual Property Rights (IPR – see patent battles at the moment)- limits competitiveness and the creation of new business model. Creators must be remunerated but current IPR is not just protecting the creator but stopping everyone else.

The old legal solutions as a nuisance?

Beata Stasinska, Book Publisher and Editor, was the last speaker on the panel. She also stressed the need to change the current copyright system as copyright is important for traditional goods, such as books, and society is at the verge of a technological revolution.

As an illustration, the availability of orphan works is crucial. They should be a common good allowed to be shared by political principles and law. Ms Stasinska dreams of a concept of 21st century library of Alexandria, put in place at EU level, not just national, and considers that the old legal solutions are inadequate and even a nuisance.

She finally pointed out that the opportunity makes the thief: piracy is often the result of users not trusting info on product or lack of availability of content, lack of independent information and channels… This last remark triggered a reaction by Professor Hugenholtz at a later stage, whereby he emphasized that the discussion of the flexibility applied to the legal framework should not be confused with the piracy debate, as those two debates are absolutely not related.

The debate then continued from the floor, but dwindled slightly away from the discussion regarding flexibility to address more general elements of the copyright discussion.

Speakers’ Bios

Hanna Wróblewska

Director of Zachęta – National Gallery of Art

Caroline De Cock

Caroline De Cock (LL.M.) is Coordinator of the Copyright for Creativity Coalition and N-square Consulting‘s Founder and Managing Director. Prior to that, she was Director of Regulatory Operation and Policy for the COLT Telecom Group and Director of EU Affairs at Cable & Wireless. She also worked as Legal Adviser at Stanbrook & Hooper, a Competition law firm, and was Deloitte’s youngest Manager worldwide at the age of 24. She is the author of ‘iLobby.eu: Survival Guide to EU Lobbying, Including the Use of Social Media’

Bernt Hugenholtz

Professor of Intellectual Property Law and Director of the Institute for Information Law of the University of Amsterdam (IViR); specialist in international law and industrial property law; consultant to the World Intellectual property Organisation (WIPO), the European Commission and several national governments. Author of numerous books, studies and articles on a variety of topics ivolving copyright, information technology, new media and the Internet.

Marzena Wojciechowska

Lawyer at the Press Publishers Chamber, director of Art Lege law firm specializing in intellectual property law protection and the media law. Widely involved in the debate on the subject of copyright including functioning of collective managament societies and fair use. Speaker at numerous conferences, seminars and debates.

Michał Kwiatkowski

Bass and guitar player, member of such music groups as Kazik na Żywo and UR, composer and co-composer of music for theatre spectacles, film translator.

Katarzyna Lasota-Heller

Lawyer, PHD in the Polish and German law, expert in the media law, especially in the context of new technologies and the Internet, officer managing legal risks in Naspers Group, member of the Max Planck Institute for Intellectual Property and Competition Law, lecturer at the Koźmiński University in Warsaw, head of EDiMA (European Digital Media Association).

Beata Stasińska

Publisher, editor; co-founder and long-time editor-in-chief in the W.A.B. Publishing House. Awarded the National Order of Merit by the President of France, also received the title of „Honoured Cultural Worker” by the Minister of Culture and National Heritage and the title of „Culture Creator” by the Polityka weekly magazine; honoured with „Medal for Merit to Culture – Gloria Artis”. Active member of the Citizens of Culture social movement.

Jaroslaw Lipszyc

Jaroslaw Lipszyc is President of the Modern Poland Foundation, board presidium for the Open Education Coalition, committee member of the Citizens of Culture, co-founder of the Stanislaw Brzozowski Association, and audit committee member of the Internet Society of Poland. Before he started working for the Modern Poland Foundation he worked for many years as a journalist, poet and musician, and currently still is an active booster of modern education and open culture. He’s the conceptual author of the portal “Włącz Polskę” (eng: Turn Poland On) published by the Polish Ministry of Education. He’s an active substantive participant in all projects of the Modern Poland Foundation, a trainer in workshops for teachers, and a lecturer on subjects related to new technology, education and Internet law. Jarosław has participated in social action towards organizing consultations on the implementation of the Register of Banned Websites and Services, was a participant of the debate “Ask the Prime Minister”, and debates ACTA and the future of the copyright. He promotes dialogue and cooperation between the NGOs and public administration.

Alek Tarkowski

Alek Tarkowski is the co-founder and director of Centrum Cyfrowe Projekt Polska, a think-and-do-tank that builds tools and methodologies for using digital technologies to increase openness and civic engagement. He’s also the Public Lead of Creative Commons Poland, and a member of both the Council of Information, that advises the Polish Ministry of Administration and Digital affairs, and the Administrative Council of Communia, an international association supporting the digital public domain.